Memphis & Charleston R.R. Co. v. Jones

• Decision Date: 30 April 1859
• Citation: 39 Tenn. 517
• Parties: MEMPHIS AND CHARLESTON RAILROAD COMPANY v. O. F. JONES.
• Court: Tennessee Supreme Court

39 Tenn. 517

MEMPHIS AND CHARLESTON RAILROAD COMPANY

v.O. F. JONES.

Supreme Court of Tennessee.

April Term, 1859.

FROM FAYETTE.

This cause was tried at the October term, 1858, before Judge Humphreys. Verdict for the plaintiff. The defendant appealed.

Pulliam and Rivers, for the plaintiff in error; Jones, and J. W. & J. A. Harris, for the defendant in error.

McKinney, J., delivered the opinion of the court.

This was an action on the case, brought by Jones against the company, to recover damages for the loss of a slave, run over by a train of cars, and killed. The plaintiff recovered judgment for $1,232.

The record shows that Jones, the plaintiff, hired to the defendant, for the year 1856, two negro boys to work on the railroad, at twenty-three dollars per month, for each. The contract of hiring contained the following stipulation, namely:

“And all risks incurred, or liability to accidents, whilst in said service, is compensated for, and covered by, the pay agreed upon; the said railroad company assuming no responsibility for damages from accident, or any cause whatever.”

The slave, it seems, was lying on the track of the road, as a freight train of some fourteen cars approached; whether or not he was asleep, or sick, or intoxicated, does not appear certainly, though it is most probable that he was under the influence of liquor. The engineer on the locomotive saw the boy, as he stated, at the distance of 150 yards, “but thought it was a carpet-sack, or an old bag of clothes.” The train was stopped, but not until all the cars, except one or two, had run over the body of the slave.

The proof shows that the road, for a distance of upwards of two miles from the spot where the slave lay, was straight, and a slight up-grade. There is some disagreement as to the distance at which the body might have been seen, as the train approached. We do not think it necessary, however, to notice the testimony, particularly, as the question for our determination arises upon the charge of the court, though it may be proper to state that, in our opinion, the verdict is sufficiently supported by the evidence.

The judge instructed the jury, that, under the before-recited stipulation of the contract of hiring, “the defendant would not be responsible for the loss of the slave, unless it appeared from the evidence that his loss was in consequence of the wilful misconduct, or gross negligence, of defendant's agents; and that the burden of the proof was upon the...